Citation Nr: 9814047
Decision Date: 05/05/98 Archive Date: 05/20/98
DOCKET NO. 96-46 079 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUE
Entitlement to an increased rating for left pleuritis,
postoperative residuals of histoplasmosis, currently rated as
10 percent disabling.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
W. Sampson, Associate Counsel
INTRODUCTION
The veteran's active military service extended from January
1955 to June 1956.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a July 1996 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Atlanta, Georgia. That rating decision confirmed and
continued a 10 percent rating for left pleuritis,
postoperative residuals, histoplasmosis which had been in
effect since June 1956.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant argues that her service-connected lung
disability, postoperative residuals of histoplasmosis, is
more severe than currently evaluated. She contends that she
now has constant pain on the left side of her body.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991) & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against an increased rating for left pleuritis,
postoperative residuals of histoplasmosis.
FINDINGS OF FACT
1. The RO has obtained all relevant evidence necessary for
an equitable disposition of the veteran's appeal for an
increased rating for left pleuritis, postoperative residuals
of histoplasmosis.
2. The veteran's service-connected left pleuritis,
postoperative residuals of histoplasmosis is manifested by
FEV-1 at 99 percent predicted and FEV-1/FVC 94 percent
predicted, and complaints of left hemithoracic pain diagnosed
as intercostal neuritis.
3. The service-connected left pleurisy, postoperative
residuals of histoplasmosis approximates a disability which is
no more than moderate.
CONCLUSION OF LAW
The criteria for a rating in excess of 10 percent for left
pleuritis, postoperative residuals of histoplasmosis have not
been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R.
Part 4, including §§ 3.951(b), 4.7, 4.56, 4.96, 4.97, and
Diagnostic Code 6834 (effective October 7, 1996); 38 C.F.R. §
4.97, Diagnostic Code 6808 (1995); Karnas v. Derwinski, 1 Vet.
App. 308, 313 (1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Preliminary Matters
The veteran's claim is "well grounded" within the meaning of
38 U.S.C.A. § 5107(a) (West 1991). That is, she has
presented a claim which is plausible. Her assertion that her
left pleuritis, postoperative residuals of histoplasmosis has
increased in severity is plausible. See Proscelle v.
Derwinski, 2 Vet. App. 629, 632 (1992) (where a veteran
asserted that his condition had worsened since the last time
his claim for an increased disability evaluation for a
service-connected disorder had been considered by VA, he
established a well grounded claim for an increased rating).
All relevant facts have been properly developed and no
further assistance to the veteran is required to comply with
the duty to assist mandated by 38 U.S.C.A. § 5107(a).
Service-connected disabilities are rated in accordance with
VA’s Schedule for Rating Disabilities, 38 C.F.R. Part 4 (1997)
(Schedule), which are based on average impairment of earning
capacity. Separate diagnostic codes identify the various
disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part
4 (1997). The disability ratings evaluate the ability of the
body to function as a whole under the ordinary conditions of
daily life including employment. Evaluations are based on the
amount of functional impairment; that is, the lack of
usefulness of the rated part or system in self support of the
individual. 38 C.F.R. § 4.10 (1997).
When a disability is encountered that is not listed in the
rating schedule it is permissible to rate under a closely
related disease or injury in which the functions affected,
the anatomical location and the symptomatology are closely
analogous. 38 C.F.R. § 4.20 (1997). Where there is a
question as to which of two evaluations shall be applied, the
higher evaluation will be assigned if the disability picture
more nearly approximates the criteria for the higher rating.
38 C.F.R. § 4.7 (1997).
In considering the severity of a disability it is essential
to trace the medical history of the veteran. 38 C.F.R.
§§ 4.1, 4.2 (1997), Peyton v. Derwinski, 1 Vet. App. 282
(1991). While the regulations require review of the recorded
history of a disability by the adjudicator to ensure a more
accurate evaluation, the regulations do not give past medical
reports precedence over the current medical findings. Where
an increase in the disability rating is at issue, the present
level of the veteran's disability is the primary concern.
Francisco v. Brown, 7 Vet. App. 55, 58 (1994).
II. Factual Background
The veteran is essentially claiming that she has increased
left sided pain resulting from surgery in August 1955 to
include excision of a lesion on her left lung later
determined to be histoplasmosis. In June 1993, the veteran
was treated for continued chest pain, stating that in 1989
she developed chest pain and pain in the fingertips, was
hospitalized and eventually told that the pain was due to her
prior chest surgery. Records of her hospitalization and
treatment from 1989 show that her symptoms began in early
June of that year at which time she began to notice some
severe sharp, alternating with left dull, precordial left
flank, mid back as well as left upper quadrant area
tenderness associated with severe sweats. Electrocardiogram
showed mitral valve prolapse; however, the etiology of her
pain was noted to be “somewhat unclear.”
A September 1989 private medical consultation noted that the
veteran's pain followed closely the surgical scar, but was
unsure why the surgical scar would be associated with the
complaints of pain unless it was slow growing scar tissue
impinging on the nerve. “The etiology for thoracic
radiculopathy is usually very difficult to determine and
unless the patient has arthritis or diabetes, then the workup
is usually pretty unyielding.”
In August 1994, an outpatient treatment report notes that an
extensive work-up had been done on the veteran's complaints
of left chest wall and left arm pain and working diagnoses
were (1) postherpetic neuralgia and (2) post thoracotomy pain
related to histoplasmosis. She was referred for a
comprehensive neurology evaluation with a “complicated story
of post-thoracotomy chest pain unresponsive to
[medication].” A September 1994 neurology consultation
report showed that the veteran had complained of chest pain
on the left and painful paresthesias in the left distal upper
extremities which had become worse recently but were relieved
by medication and heat. On examination, her symptoms were
alleviated by positioning her left arm in a 90 degree
abducted position. She had no neurologic deficit and nerve
conduction studies did not show signs of a left thoracic
outlet syndrome.
A March 1996 neurology report noted that the veteran was
being followed with left hemithoracic spasm and pain and had
been admitted from January to February with a diagnosis of
histoplasmosis, treatment for which by a trial of antibiotic
was being held off pending further diagnostics. The
impression on the neurology consultation was musculoskeletal
left hemithoracic pain syndrome. On follow-up examination in
July 1996, the diagnosis was intercostal neuritis.
In June 1996, the veteran was afforded a VA examination. She
stated that since the time of her surgery in 1955, she had
had considerable pains in the left side of her chest, and had
been treated with various medications. Other medical
problems noted were a history of eosinophilia,
gastroesophageal reflux, mitral valve prolapse,
hypercholesterolemia, and blood pressure problems. Pulmonary
function tests showed mild obstructive disease with FEV-1 at
99 percent predicted and FEV-1/FVC 94 percent predicted. She
had an abnormal electrocardiogram. The diagnosis was
“[s]tatus post partial lobectomy, left lung, remote for
histoplasmosis with intercostal neuralgia.”
III. Analysis
The veteran's disability is primarily manifested by
complaints of pain in the left hemithoracic region, diagnosed
as intercostal neuralgia. After many attempts to isolate the
specific cause of her pain, including neurological testing
with nerve conduction studies, and electrocardiogram, it
remains of unknown etiology. Because the pain is in the
general area of her August 1955 lung surgery, her left
thoracic area, the Board will consider her pain to be a
residual of her service connected disability in the absence
of any evidence to the contrary. 38 U.S.C.A. § 5107(b) and
38 C.F.R. § 3.102 (1997).
Historically, the veteran was originally rated in a November
1956 rating decision under Diagnostic Code 6808 for mycosis
of the lung, unspecified by application of VA's 1945 Schedule
for Rating Disabilities (now found at 38 C.F.R. Part 4).
Since that decision, there have been several amendments to
the rating schedule. While this appeal was pending, the
applicable rating criteria relating to the respiratory system
was amended effective October 7, 1996. 38 C.F.R. §§ 4.96,
4.97 (1996); [61 Fed.Reg. 46720-46731 (Sept. 5, 1996)].
Diagnostic Code 6808 was replaced by diagnostic codes 6834
through 6839 under the heading “Mycotic Lung Diseases”,
listing each disease by type.
The Board finds that under the new rating criteria, the
veteran is most appropriately rated under Diagnostic Code
6834 for histoplasmosis of the lung. This Diagnostic Code
states that for histoplasmosis that is asymptomatic, with
healed and inactive lesions, a noncompensable evaluation is
assigned. Higher evaluations from 30 to 100 percent are
contemplated for chronic pulmonary mycosis that is “with
minimal symptoms such as occasional minor hemoptysis or
productive cough” for a 30 percent evaluation, “requiring
suppressive therapy with no more than minimal symptoms such
as occasional minor hemoptysis or productive cough” for a 50
percent evaluation, or “with persistent fever, weight loss,
night sweats, or massive hemoptysis” for a 100 percent
evaluation. 38 C.F.R. § 4.97 Diagnostic Code 6834 (1997).
Because there is no evidence in the medical record of even
minimal symptoms of histoplasmosis, such as a productive
cough or hemoptysis, a higher evaluation is not warranted.
The timing of the change in the respiratory regulations
requires the Board to first consider whether the amended
regulation is more favorable to the appellant than the prior
regulation, and, if so, the Board must apply the more
favorable regulation. Karnas v. Derwinski, 1 Vet. App. 308
(1991); See Dudnick v. Brown, 9 Vet. App. 397 (1996)(per
curiam); VAOPGCPREC 11-97. The Board has considered the
respiratory regulations which were in effect prior to the
most recent revision of regulatory criteria, and during the
pendency of the veteran’s appeal; however, the evidence of
record does not reflect the presence of active symptoms of
mycosis, or an appropriate analogous disability which would
reflect her complaints of thoracic pain and which would allow
for a higher evaluation. 38 C.F.R. § 4.97 Diagnostic Code
6808 (1995).
Analogous disorders, as contained in the Schedule prior to
the revision of the respiratory regulations include injuries
of the pleural cavity, Diagnostic Code 6818, purulent
pleurisy (empyema), Diagnostic Code 6811, injuries to the
muscles of respiration, Diagnostic Code 5321, and
postoperative residuals of lobotomy, Diagnostic Code 6816.
To obtain a higher rating under injuries of the pleural
cavity, the veteran would have to show moderate injury to the
pleural cavity demonstrated by a bullet or missile retained
in the lung, with pain or discomfort on exertion or scattered
rales or some limitation of excursion of the diaphragm or of
lower chest expansion. 38 C.F.R. § 4.97, Diagnostic Code
6818 (1995). Such criteria have not been shown in this case.
Nor are there symptoms required for a higher evaluation under
the diagnostic code for pleurisy, such as evidence of marked
dyspnea or cardiac embarrassment on moderate exertion,
attributable to the post operative residuals of
histoplasmosis. 38 C.F.R. § 4.97, Diagnostic Code 6811
(1995). There is also no evidence of moderately severe
muscle injury to the muscles of respiration, such as evidence
of through and through or deep penetrating wound which would
allow for a higher evaluation under that diagnostic code.
38 C.F.R. §§ 4.56, 4.73, Diagnostic Code 5321 (1995).
Finally, although she had excision of a small section of her
left lung (coin excision), a compensable evaluation for
lobectomy is not applicable for partial lobectomy. 38 C.F.R.
§ 4.97, Diagnostic Code 6816 (1995)
The Board has also considered those analogous disabilities
which are reflected in the current Schedule, since
implementation of the revised respiratory regulations. In
this regard, the Board notes that the veteran has also been
diagnosed with mild chronic obstructive pulmonary disease.
Under the new respiratory rating criteria, a compensable
evaluation for either chronic obstructive pulmonary disease
or surgical residuals of lobectomy is based on the results of
pulmonary function testing where forced expiratory volume in
one second (FEV-1) predicted value, the ratio of FEV-1 to
forced vital capacity, or the diffusion capacity of the lung
for carbon monoxide by the single breath method, predicted,
is no greater than 80 percent. In June 1996 pulmonary
function testing, FEV-1 was 99 percent of predicted value and
the ratio of FEV-1 to forced vital capacity was 94 percent of
predicted value thereby precluding the possibility of a
higher rating based on the results of pulmonary function
testing.
Although the regulations pertaining to muscle injuries were
also recently amended, Diagnostic Code 5321 pertaining to the
muscles of respiration remains substantially unchanged. 38
C.F.R. §§ 4.56, 4.73, Diagnostic Code 5311, as amended by 62
Fed. Reg. 30235 through 30250 (June 3, 1997). The Board has
thoroughly examined all possible diagnostic codes under which
the veteran’s disability may be rated; however, because her
disorder is essentially asymptomatic with the exception of
chronic complaints of pain, no higher rating is possible for
her disability. Although her disability would be
noncompensable under the most applicable Diagnostic Code,
6834 for histoplasmosis, the Board notes that the veteran's
10 percent disability rating has been in effect continuously
since June 1956 and as such, the 10 percent rating is
protected under 38 C.F.R. § 3.951(b) (1997). Moreover, we
consider that the pain experienced by the veteran warrants
the 10 percent in effect.
The Board notes request of the representative in March 1998
arguments that this case be remanded to the RO for another
examination. However, other than arguing that the veteran's
disability should be rated under Diagnostic Code 6834 for
histoplasmosis, which has been done, the representative does
not explain how the current medical evidence is inadequate or
how the veteran's claim would be benefited by another
examination. The Board finds the medical evidence in this
case to be adequate to rate the veteran's disability.
ORDER
An increased rating for left pleuritis, postoperative
residuals of histoplasmosis, is denied.
BETTINA S. CALLAWAY
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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